Your Employer Treated You Shabbily, but Is It Discrimination?
You've just been fired, or the job or promotion you know you earned has just been given to someone with half your qualifications. Suspiciously, that person may also be much younger, white, and male. The temptation might be to jump to the conclusion that you are a victim of discrimination. And you may be. But the question you need to focus on is whether you were discriminated against in a way prohibited under the law, which is a rather different question from what common sense may tell you. No matter how outrageous an employer's decision, the law will not allow you proceed with a discrimination claim unless you can meet the law's extensive, technical requirements.
What Don't Anti-Discrimination Laws Prohibit?
Anti-discrimination statutes do not prohibit an employer from making foolish, rash, harsh, ridiculous, or generally unfair employment decisions. You may well have suffered from an employer's petty hatreds, undue favoritism of others, unreasonable demands, and even tantrums and undeserved tongue lashings. The truth, however, is that alone, these factors are not enough to prove discrimination. Traditionally, an employer could fire an employee for any reason. And generally an employer still can, except in those few areas where the law has made the employer's reason illegal. The employee must show, accordingly, that the employer's motivation was illegal. (Depending on state law, there are other factors beyond the scope of this Guide that may give an employee the right to sue for wrongful termination and other causes of action).
What Do Anti-Discrimination Laws Prohibit?
Anti-discrimination statutes prohibit an employer from undertaking any action regarding an employee based on that employee's race, gender, ethnicity, disability, creed, national origin, familial status, or veteran status (each of these comprising a "protected class" of individuals who cannot be discriminated against). This prohibition would apply as much to termination as hiring decisions. But while the law may ostensibly seem straight forward, its application can often be complicated and confusing. Understanding the facts of your situation well ahead of time and organizing them as best you can will have important ramifications for your case's chances to survive up until trial.
Try and Get Some Distance
Before you spend any time trying to organize the facts of your case, you must do your best to step back from what has happened to you. If you are angry enough to sue your employer, then you are probably not going to see matters as objectively as you might otherwise be able to. But being as fair as you can with the facts of your case will be very important as you move forward in building the basis for your complaint.
Organize Your Facts
Unless your employer said something like "you're too old for this job" before firing you, you will need to prove your case another way. Specifically, you will need to (1) look carefully at your replacement and (2) prove the falsity of your employer's justifications for its decision. For the first factor, if your replacement shares with you the same characteristic you believe the source of discrimination (like race or gender), you likely have no claim. For the second factor, you need to prove all of your employer's reasons are false or that even if true, could not have motivated its decision. You can also prove your case by showing your employer engaged in the same conduct for which your were fired, or by comparing yourself to employees outside your protected class who kept jobs similar to yours, despite the fact they engaged in the substantially the same conduct you are alleged to have engaged in.
Find an Attorney
Discrimination law can be a minefield for the layman, and only rarely do litigants who proceed by themselves succeed. If you think you have a claim, you should ideally approach a labor and employment or civil rights attorney to represent you. The Bar Association for your state or city is a good place to begin. Your union, if you belong to one, may also provide referrals and guidance. Once you have found an attorney, you will need to organize your facts and sell your case. Selling your case is important, because attorneys are cautious about the cases they accept, given the high failure rate for discrimination cases. Know how to tell your story, be familiar with the facts, and be ready to refute the employer's position. Your initial consultation with an attorney is almost always free. If the attorney takes your case, you will likely be under a contingency fee arrangement, where the attorney takes a percentage of your award if you succeed, instead of billing you hourly.
Beware of Deadlines
Anti-discrimination statutes have a clock on them, and if you do not act in time, your claim may well be extinguished, no matter how illegal your employer's conduct. First and foremost, before you can access the courts, you must file a complaint with the Equal Employment Opportunity Commission (EEOC) within 180 days of your employer's decision to terminate or not hire. Chances are, the EEOC will give you a right to sue letter. This letter gives you permission to sue the employer in court, within 90 days of the date stated on the letter. Organizing your facts and finding an attorney as early as possible is thus crucial to protecting your claim and rights. Laws and regulations can change, and your state may have other laws and deadlines applicable to your claims. Be sure to check with the EEOC and relevant state agencies as soon as your think you may have a claim.